Raub et al v. Moon Lake Property Owners' Association et al
ORDER Overruling 105 Objections, Adopting 104 Report and Recommendation, Granting Defendants' 75 80 Motions for Judgment, Granting Defendant's 76 Motion to Dismiss, and Dismissing all Claims with Prejudice. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DAVID RAUB, et al.,
Case No. 15-13480
Honorable Thomas L. Ludington
MOON LAKE PROPERTY OWNERS
ASSOCIATION, et al.,
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, GRANTING DEFENDANTS’ MOTIONS FOR JUDGMENT,
GRANTING DEFENDANT’S MOTION TO DISMISS, AND DISMISSING ALL CLAIMS
Plaintiffs David and William Raub are brothers who own two parcels of property in the
Moon Lake Resort in Greenwood Township, Michigan, located in Oscoda County. On October
5, 2005 Plaintiffs filed a ten-count complaint against Defendants Moon Lake Property Owners’
Association, Linda Argue, and Thomas McCauley (the “Moon Lake Defendants”), Greenwood
Township, James Hervilla, Fred Lindsey, and Larry Mathias, (the “Township Defendants”) and
Oscoda County and Tim Whiting (the “County Defendants”). Plaintiffs then filed an amended
complaint adding an eleventh count on November 22, 2016. See ECF No. 71. Plaintiffs allege
that after they protested that Moon Lake’s pool was not ADA compliant, Defendants conspired
to “launch a multi-front campaign to squelch the Raub’s advocacy in the ADA Compliance
dispute.” Compl. ¶ 2.
As a part of this conspiracy, Defendants allegedly enforced blight
ordinances against Plaintiffs, filed a lien on Plaintiffs’ property for non-payment of $45 in annual
dues upon which Defendants subsequently obtained a default judgment, and filed a nuisance
lawsuit against Plaintiffs in state court. Compl. ¶¶ 8-11.
The County Defendants were dismissed from this action on October 21, 2016 after
Plaintiff accepted their offer of judgment. See ECF No. 54. However, after Plaintiffs’ amended
complaint reasserting the claims against the County Defendants, those Defendants filed a motion
to dismiss on December 5, 2016. See ECF No. 76. That same day, December 5, 2016, the
Township Defendants moved for summary judgment, and the following day, December 6, 2016,
the Moon Lake Defendants moved for summary judgment. See ECF Nos. 75, 80. On February
24, 2017 Magistrate Judge Patricia T. Morris issued her report, recommending that Defendants’
motions be granted on the basis of res judicata. See ECF No. 104. On March 13, 2017 Plaintiffs
filed objections. See ECF No. 104. For the reasons stated below, Plaintiffs’ objections will be
overruled and the magistrate judge’s report will be adopted.
Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of
a magistrate judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must
be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review
requires at least a review of the evidence before the magistrate judge; the Court may not act
solely on the basis of a magistrate judge’s report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept,
reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett,
221 F. Supp. 2d 806, 807 (E.D. Mich. 2002). Plaintiffs now raise eight objections to the
magistrate judge’s report and recommendation. See ECF No. 105.
In their first objection Plaintiffs argue that it was fundamentally unfair for the magistrate
judge to decide Defendants’ motions on the papers without holding a hearing.
“dispositive motions are routinely decided on papers filed by the parties, without oral
arguments.” Scott v. Metro. Health Corp., 234 Fed.Appx. 341 (6th Cir. 2007). Furthermore, the
Eastern District of Michigan Local Rules specifically permits motions to be decided without a
hearing. See E. D. Mich. L. R. 7.1(f). Because Defendants’ motions present straightforward
legal questions regarding the applicability of res judicata, it was appropriate for the magistrate
judge to decide the motions without holding a hearing.
Plaintiffs next object that the report and recommendation should be rejected because they
were barred from conducting necessary discovery into the merits of the case. This objection is
without merit, as this Court has already found that Plaintiffs’ discovery requests were
“breathtakingly broad, burdensome, and intrusive; far exceeding the scope of relevant and
proportional discovery under Rule 26(b)(1).” See ECF No. 56. Plaintiffs’ second objection is
therefore without merit and will be overruled.
In their third objection Plaintiffs argue that they did not waive their right to challenge the
applicability of res judicata, despite conceding that they did not challenge its applicability in
response to Defendants’ motions for summary judgment. Because Defendants raised res judicata
arguments in their motions for summary judgment Plaintiffs were on notice that the magistrate
judge could rest her decision on that basis. Plaintiffs therefore disregarded Defendants’ res
judicata arguments at their own peril. In response to Defendants’ motions for summary
judgment, it was Plaintiffs’ burden to set out facts showing “a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Plaintiffs were not permitted to rest on their
pleadings, nor rely on the hope that the magistrate judge would disbelieve or disregard
Defendants’ claims. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (internal
quotations omitted). By failing to challenge Defendants’ assertion of res judicata, Plaintiffs did
not satisfy this burden, and waived their ability to challenge the applicability of res judicata at a
Through their fourth, fifth, sixth, and seventh objections Plaintiffs challenge the
magistrate judge’s determination that res judicata bars their claims. However, as noted above,
Plaintiffs did not raise these arguments in response to Defendants’ motions for summary
judgment. “[W]hile the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review
by the district court if timely objections are filed, absent compelling reasons, it does not allow
parties to raise at the district court stage new arguments or issues that were not presented to the
magistrate.” Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000). Plaintiffs have not
identified any compelling reason for failing to raise these arguments in response to Defendants’
motions for summary judgment. Their objections will therefore be overruled.
In their eighth and final objection Plaintiffs argue the magistrate judge’s report
impermissibly shifted the burden of persuasion to Plaintiffs. However, as noted above, at the
summary judgment stage it was Plaintiff’s burden to set out facts showing “a genuine issue for
trial.” Anderson, 477 U.S. at 250. By failing to contest Defendants’ res judicata arguments
Plaintiffs did not meet this burden. Plaintiffs’ final objection will therefore be overruled.
Accordingly, it is ORDERED that Plaintiffs’ objections, ECF No. 105, are
It is further ORDERED that the report and recommendation, ECF No. 104, is
It is further ORDERED that the Township Defendants’ motion for judgment, ECF No.
75, is GRANTED.
It is further ORDERED that the County Defendants’ motion to dismiss, ECF No. 76, is
It is further ORDERED that the Moon Lake Defendants’ motion for summary judgment,
ECF No. 80, is GRANTED.
It is further ORDERED that Plaintiffs’ claims are DISMISSED with prejudice.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 13, 2017
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 13, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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